Thursday, January 29, 2009
Wednesday, January 28, 2009
Thursday, January 22, 2009
I had the opportunity to attend a seminar/briefing conducted by two notable attorneys from two well known law firms in the Atlanta area, Bennet Alsher of Ford & Harrison LLP and Daniel Shea of Nelson Mullins Riley and Scarborough LLP. They discussed alot of the impending legislation that will be introduced by the Congressional Democrats, supported by the Obama administration. They, Dan Shea in particular, discussed the EFCA, starting with a little history.
But first, let me remind you of the provision of EFCA. First, there is card check recognition, which would allow unions to declare a victory in organizing employees simply by getting 50% plus 1 signatures. It would eliminate the use of secret ballot elections. Secondly, there is First Contract Arbitration. This would require the government to impose terms of agreement if no agreement is made within 180 days. This binding agreement would be in force for 2 years. Thirdly, there would be increased penalities for Unfair Labor Practices to the tune of $20,000 per violation and the potential for treble damages. Oh, by the way, these penalties are for managment only! Now onto the information.
Dan Shea pointed out that originally, the Wagner Act had card check as the prime method of unionization written in the original law. The abuses by the unions, such as coercion, intimidation and threats of physical violence, forced lawmakers in 1947, in the Taft-Hartley Act, to change the process to secret ballot election. Dan also pointed out that Canada, which has a workforce that is 30% union (down from 40%) originally had card check solely as the method of union organization. The abuse of this method was so bad that the two largest provinces changed to secret ballot election. I confirmed this by some investigation and found this bit of research from a researcher named Sarah Johnson. "In the last 25 years, a major change has occurred in the way unions are recognised in Canada. In 1976, every jurisdiction in Canada used card check. Today, more than 50% of the Canadian labour force is covered by mandatory vote legislation and union recognition procedures continue to be a matter of policy concern and debate ..."
In case you think it is only business leaders and Republicans who find the use of secret ballot elections preferable here are quotes from some primary Democrat leaders. From The Union News we have "The leading House sponsor of card check is Rep. George Miller, who also served as campaign manager of Mr. Waxman's race against Mr. Dingell, settled by secret ballot. What's more, along with 10 House Democrats, Mr. Miller wrote a 2001 letter to Mexican government officials encouraging the "use of secret ballots in all union recognition elections." The letter states: "We feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose." In the inner workings of Congress representatives recognize the value of a secret ballot as evidenced by this quote about a vote to replace a key member of a committee. "Even Rep. Louise Slaughter, chairwoman of the House Rules Committee, told Congressional Quarterly she was relieved the vote would be a private one: "It's a secret ballot. . . . Thank the Lord." So there is just a bit of hypocrisy.
Dan and Bennet both thought that there may be some manauvering to soften the blow of EFCA, but they both believe that the bigger issue of EFCA is the First Contract Arbitration. Most first contracts are not usually negotiated in less than six months. The 180 day requirement is entirely unreasonable. And then to have the government impose your terms is disasterous. To give you an idea, in Canada, this method ended up with a WalMart Auto shop being forced to give employees a 32% increase in wages, despite a very competitive market that did not allow a comparable price increase. The result? WalMart closed the center the next day and all the newly unionized employees were out of work.
Another tidbit, the 50% +1 on card check is for the appropriate bargaining units, which you may not even know what that definition is until you are presented "your" union by the NLRB.
Lastly, there will be ABSOLUTELY NO SANCTIONS against unfair labor practices engaged in by the unions.
This law is the unions NUMBER 1 PRIORITY and they have alot of support. The NLRB will be heavily union biased as is the new Secretary of Labor (after all her father was a Teamster president.) So be aware, be educated and be active. Let your Congressional representatives know this is bad law. Here are a couple of educational resources. From UnionFacts. com info on intimidation. Lots of info from The Union News.
Wednesday, January 21, 2009
Tuesday, January 20, 2009
- Do you know what it takes to be a top-performer in your organization? If you cannot articulate this you may not be one.
- Can you show, on paper or spreadsheet, your accomplishments? Have they really contributed to the success of the organization? Much more than average? If no, then you probably aren't a top-performer.
From the Company perspective:
- Do you know what it takes to define top performance? If no, then you are probably not a top-tier company.
- Do you know who your top performers are? If not, you are likely to lose them.
- If you can identify them, are you prepared to reward them in order to keep them? If not, then you are likely to lose them.
- Do you understand the cost associated with losing a top performer? You should.
Now once the recession ends we may return to an "entitlement" mindset, especially if as a result of the EFCA, we have a greater level of unionism. But I hope not. I hope we truly learn the lesson of performance and merit that are being thrust on us by this recession.
What do you think?
Monday, January 19, 2009
- Winter weather (well only in the northern hemisphere)
- Christmas credit woes
- Blown New Year's resolutions
- Job fears
- Mounting debt
- The economic crisis
Well this is not going to apply to everyone, so this is hyperbole, but it makes good news. It is sort of like your horoscope. If it applies it is amazing, if it doesn't you ignore it. Just realize that the 51% of your employees that hate being at work may feel this way.
Wednesday, January 14, 2009
Tuesday, January 13, 2009
Fundamentally changes statute of limitations—By making the time clock start over upon the issuance of each successive paycheck or retirement benefit, the Ledbetter bill would allow individuals to bring discrimination claims years or even decades after an alleged act of discrimination occurred. Employers would be liable for previous management decisions for which there may be no available witnesses or records.
Expands plaintiff field—The Ledbetter bill would allow not just an employee who was discriminated against, but other individuals who were “affected” by an act of pay discrimination to file claims. The legislation may allow family members, including spouses and children, and potentially others to become plaintiffs in suits over an employee’s pay—even after the employee was deceased.
Ø Promotes class action lawsuits against employers—The Paycheck Fairness Act would require employees to “opt-out” of a gender discrimination class action, rather than the current law requirement that employees must give their written consent to join a class action. By automatically including all employees as part of a class, the bill would dramatically increase the number of plaintiffs in class actions.
Ø Exposes employers to unlimited damages—The Paycheck bill would create unlimited punitive damage awards for which employers would be liable, in addition to current liability for back pay. The potential for such penalties would likely compel employers to settle more wage discrimination claims, even in cases where no discrimination occurred.
Ø Restricts legitimate pay practices—The Paycheck bill would make it significantly more difficult for an HR professional to use legitimate factors, such as education, training, or experience, as a component of an organization’s pay system. Moreover, the legislation may altogether prohibit an employer’s use of local market rates and prior salary history in setting compensation.
Friday, January 09, 2009
Thursday, January 08, 2009
Wednesday, January 07, 2009
It affects HR in that it makes it almost impossible for Republican Representatives to have legislation they think is bad for the country reconsidered. And for many this includes the two pieces of legislation that are being acted on RIGHT NOW, AS IN JANUARY 7TH. These are the Lily Ledbetter Fair Pay Act and the Paycheck Fairness Act. Both of these may be noble in thought but are bad in execution. SHRM, The U.S. Chamber of Congress and other business associations are all lined up in opposition to these bills.
But this opposition, and the letter writing campaign SHRM called for may come too late. These bills are being pushed through the House as I write this and with the rules changes House opponents may have no opportunity to stop or have have the bills reconsidered. New Congressional Representatives are being asked to vote on something they have had no time to get educated on. (Of course, I believe most Representatives don't have a clue about how businesses operate anyway. Most have never had to make a payroll.)
The Ledbetter Fair Pay Act would effectively eliminate the uniform statue of limitations on pay discrimination claims and restart the time clock for filing such a charge with the EEOC upon the receipt of each successive paycheck. The bill would also re-start the time clock when a retiree receives an annuity check from an employer, and would thus keep employers liable to a discrimination claim potentially decades after an alleged act of misconduct. The legislation would amend the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act.
The Paycheck Fairness Act would limit an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living. Second, the bill would lift the caps on compensatory or punitive damages for which employers would be liable, in addition to current liability for back pay. These damage penalties would apply to even unintentional pay disparities.
A third piece of legislation, the Employee Free Choice Act, may also soon be offered on the floor but opinions vary on its immediate chances of success. The other two are considered "low hanging fruit" (after all who is not for fairness?). Here are two articles that offer slightly different points of view on these issues. Workplace legislation coming to a head in Congress from the Kansas City Star and Labor Unions' Top Priority Faces Delay from the Wall Street Journal. Check them out. I would offer to send you to SHRM's website for information too... BUT THEY DON'T HAVE ANY VISIBLE! Yes they sent a letter to the membership but how about posting it for everyone to see?? I am gravely disappointed.
Don't be passive with this legislation. Inform you legislator of your opinion, either pro or con. I wrote about this, here, in reference to the election. The advice offered there still applies.